10 Ky. 253 | Ky. Ct. App. | 1821
delivered tbe opinion.
This is an ejectment, wherein a judgment was remitted in favor of the plaintiff below, notv appellee, against the appellants, then defendants. On the trial, the plaintiff gave in evidence a patent to Mayo, and ⅜ subsequent deed from Mayo to Green Clay, and then a deed from Green Clay to the lessor of the plaintiff: and proved that these deeds and patent Covered the lamí demanded. Whtn the deed from Clay to tbe lessor of the plaintiff was introduced, the counsel for defendants objected to its being read, beCause it expressed no adequate consideration. The overruled the objection, and we conceive rightly. The deed purported to he made in obedience to a decree of the Madison circuit court, in a suit in chancery, wherein Tiro* Ibas C. Howard was complainant and the present defendants beltiw, the heirs ef Robert Porter, deceased, and Green Clay were defendants. Which decree’ had directed the Sale of the latid in question by commissioners, Who hat! sold it to the present lessor of the plaintiff, to whom the court
jj was admitted by the plaintiff’s counsel, that the infatlt heirs of Robert Porter, deceased, who were defendents in this cause, and who were also defendants in said chan-cerj su¡t, bad, in that suit, no guardian appointed to defend ^or ‘hem- On this admission, the defendants moved the couyt to reject the decree as invalid on that account. The court overruled the objection. If the decree of tb^ court a* ga>'ist infants, then offtred in evidence, was invalid, becaus# guardian was appointed to defend for them, then the decision of the court below is erroneous. If, on the contra-r-v’ l^e ^ecree w^3 va.hd until reversed — was voidable only anc* not ¥0⅝ lhen the decision of the court is correct, Many of the acts of infants themselves in pais, are void, and others voidable only. But with regard to judicial acts done against them, the rule is, that they are voidable only. The infant defendant has his day, frequently allowed him, and almost always in a court of equity, after lie comes of age, to reverse or set aside decrees against him. If he does not avail himself of this privilege, the decision stands, and must have its force. Until measures are taken to avoid it, it likewise has its effect. From this principle it follows, that the decree was properly admitted. The plaintiff, who proved that Green Clay had given his bond for the land in contest, to Robert Porter, ⅛ bis life time, which bond had been pledged with Thomas Howard, who had brought the chancery suit aforesaid, to subject the land to sale, and the witnesses introduced by plaintiff, on the interrogation of the defendants’counsel, proved, that the lessor of the plaintiff, at the time he purchased at the sale of commissioners under the decree, understood that there was such, a bond given by Clay to Porter, and that Clay had bound himself to Porter for the legal estate. On this proof, the defendants’ counsel objected to the deed of Clay to the lessor of the plaintiff as fraudulent, because the lessor, as purchaser, bad notice of the bond to Porter. It might well be assumed as true, that the lessor of the plaiutiffhad this notice; for he was purchasing under a decree, the record of which disclosed the
The decree aforesaid, and sale under if, and conveyance mide in pursuance thereof, was further objected to, on the ground that the decree was rev-rsed, as will be. seen by the reported case in 1 Marsh. 353. But before the reversal, Clay bad conveyed in pursuance of the decree, and the lessor of the plaintiff bad paid the money, and bis title was complete. This objection was likewise overruled. This objection appears to be predicated upon the supposition, that the reversaPof the decree by this court, not only restored Porter’s heirs to their equity, which was lost by it, but also divest d the lessor of the plaintiff of the lega! title which lie had acquired. Assuming it as correct, that the reversal restored to the defendants in this case, their equity, it cannot be admitted that it stripped the lessor of the plaintiff of the legal estate acquired by his conveyance from Clay. This conveyance was made in pursuance of an existing decree, and is founded, as we have said, on a valuable consideration, at the time, by Green Clay who held the legal estate. It could not be divested by the reversal. At m«st, it could only give the complainants a claim to that
It was proved in the cause, that Porter resided on the tract of land till his death, and that his widow, who was one of the defendants in. this case, resided there stiff, and it did not appear that her dower was ever assigned her. The recovery of the lessor of the plaintiff was then, ob* jected to, on the ground, that she was entitled to the mansion house and farm till her dower was assigned her, under the act of assembly regulating dowers. Whether» widow. Under the laws of this country, is entitled to (tower of an equitable estate held by her husband at his decease, is a question not yet settled. We however feel ourselves under no necessity of deciding it now. For assuming the law to 5^ (s|le ⅛ entitled, her estate or right to hold must pnr-•ftheof the nature of the estate, which her deceased husband held, and cannot be supposed to arise from the. grada 0f an equitable to a lega! estate by force of the statute. ^ course it must yield to a legal estate in another, and b« subject to the same recovery that it would have been in the hands of her husband, if he was living. It coqld not, there-^0|,<3’ Protect *,er ⅛ a court of law against the legal title of the lessor of the plaintiff. For it cannot be pretended that the act of assembly gives such a resident widow a right to the mansion house and farm against all the world, and those who hold superior titles, whatever right it may give her a-» gainst the heirs of the decedent.
During the progress of the trial, Green Clay was offered as a witness on the port of the plaintiff below, and objected to as incompetent. The objection was overruled. We do not perceive the force of the objection. He had give» his bond to Porter to convey all his title and right, and no more. In obedience to the decree, and in the fulfilment of the same bond, he had conveyed to the lessor of the plaintiff, the purchaser, with warranty against himself and heirs,
Tbe defendants introduced testimony proving that an adverse claim by patent of younger date covered the land; that a certain John Bone, now one of the defendants, acquired that adverse title by conveyance, and settled on the land holding adverse to Clay’s claim — that Clay obtained a judgment in ejectment against Bone, and while the controversy was pending about pay for improvements, Clay sold out to Porter and gave the aforesaid bond. That he directed Porter to settle with Bone about the improvements and the possession, which Porter did do, and got the possession. The counsel for the defendants, moved the court to instruct the jury, that if they believed, from the evidence, that Bone was settled on tbe land at the date of Green Clay’s deed from Mayo, holding' it adversely to Mavo’s claim, the deed from Mayo to Clay was void. This instruction was refused. If the fact had been established, that Bone was in tbe adverse possession of the land before and at the date of Mayo’s deed to Clay, the effect of it Upon the deed of Mayo, might form a very serious question, under tin? act of 1788, 3 Litt. 5t>9, unless Porter’s entry under Clay,.should preclude his heirs from taking advantage ef it. But the fact is not made to appear. The deed from Mayo, is dated in 1791; and Bone’s deed from the adverse patentee, is in 1797. The bill of exceptions, whether worded artfully or ineautiou3¡y, slates that the defendants proved that Bone settled on the land prior to the date of his own deed, and continued to reside thereon for eight or len years, and until long after Mayo's deed to Clay. But hot one word is said about residing tuere before or at the
